![]() By Gretchen Schuldt Did the state misrepresent data it used to argue that convicted felons should never be allowed to own guns? State Supreme Court Justice Brian Hagedorn said yes, and a WJI analysis suggests the state's presentation was misleading, at best. It is unclear, though, that having more accurate data would have changed the court's ruling in State v. Roundtree upholding the gun possession ban law that courts had also previously upheld. Assistant State Attorney General Sarah Burgundy and Attorney General Josh Kaul contended in a brief that a Department of Corrections study showed that "Public-order offenders had a significant rate of recidivating with violent crimes. For example, based on data from prisoners released in 2011 for public order offenses, 21.4% recidivated with a violent offense..." WJI, based on the data contained in the report, determined that 6% of public-order offenders recidivated with violent crimes. Reached by email for comment, Burgundy simply referred WJI to the DOC study. Public-order offenses, the study said, included non-property, non-violent crimes such as fifth- or sixth-offense drunk driving, felony failure to pay child support, possession of a firearm by a felon, and felony bail jumping. The appellant in the gun case, Leevan Roundtree, was convicted in 2003 of felony failure to pay child support and was placed on probation, which he completed; in 2015, police found a gun under his mattress, and he was convicted of felon in possession of a gun and sentenced to 18 months in prison and 18 months of extended supervision. Roundtree argued unsuccessfully that the gun ban was unconstitutional when applied to non-violent offenders like him. DOC defined recidivism in its report as "Following an episode of incarceration with the Wisconsin DOC, to commit a criminal offense that results in a new conviction and sentence to Wisconsin DOC custody or supervision." Burgundy and Kaul, in their brief, also said the study's data showed that "the 21.4% of public-order offenders recidivating with a violent crime was higher than that of property offenders (16%) and drug offenders (17.9%)," they wrote. "And it was just seven percentage points lower than the rate of violent offenders (28.3%). WJI determined that 6.6% of property offenders, 5.5% of drug offenders, and 7.7% of violent offenders recidivated with violent crimes. The DOC study did not measure the released offenders who recidivated with violent crimes, as the brief suggested. It measured instead the share of recidivists who committed such crimes, as Hagedorn said in his dissent. The state's brief did not make clear that the percentages it cited so prominently represented a percentages of percentages. Justice Ann Walsh Bradley cited the state's figures in the majority opinion upholding the gun possession ban.
"This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence," Walsh Bradley wrote. Hagedorn, in dissent, disagreed. "That's simply not what the study says, and it is an egregious error in light of its almost singular prominence in the State's effort to prove the requisite connection," Hagedorn wrote in a dissent "It should be obvious, then, that this (21.4%) statistic offers no assistance in establishing the relationship between past crime and a person's risk to commit gun-related violent crime in the future, which is the core inquiry of the intermediate scrutiny analysis," he said.
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![]() Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue. Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages) The upshot The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him. Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm.... We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny. Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence..... The Background In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm. Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen." The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision. The guts
Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications.... The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property." But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense. Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence." The legislature did not... create a hierarchy of felonies, and neither will this court. Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here. Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence." Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is. The State Supreme Court will hold a public hearing at 9:30 a.m. Jan. 14 to hear comments about a rule proposed by the Wisconsin Institute for Law and Liberty that would allow the court to slam the door on public participation in the redistricting process. As many as 2,000 or more comments opposing the measure were submitted to the court. A summary of the proposal is here:
![]() By Gretchen Schuldt Timing is everything. The Trump campaign's decision to wait until after the Nov. 3 election to complain about Wisconsin election procedures that had been in effect for years played a big role in dooming its lawsuit in the State Supreme Court. The court, in a 4-3 decision, upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race. Team Trump cited four grounds for challenging ballots in Dane and Milwaukee counties, and three of them were struck down under the doctrine of laches, which means there was an undue delay in asserting a legal right. In other words, "you snooze, you lose." (We discussed Trump's fourth issue, that the ballots of people declaring themselves "indefinitely confined" should be tossed, here.) Justice Brian Hagedorn, writing for the majority, made it clear: The Campaign's delay in raising these issues was unreasonable in the extreme, and the resulting prejudice to the election officials, other candidates, voters of the affected counties, and to voters statewide, is obvious and immense. Laches is more than appropriate here; the Campaign is not entitled to the relief it seeks.... The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied. Election officials in Dane and Milwaukee Counties reasonably relied on the advice of Wisconsin's statewide elections agency and acted upon it. Voters reasonably conformed their conduct to the voting policies communicated by their election officials. Rather than raise its challenges in the weeks, months, or even years prior, the Campaign waited until after the votes were cast. Such delay in light of these specific challenges is unreasonable. Hagedorn obviously recognized the importance of the timeliness issue – he cited 20 relevant cases. His opinion was joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky. The three allegations and edited responses from the court's decision are below. 1) All Dane and Milwaukee County in-person absentee ballots votes were cast illegally without an application because, it said, the application form did not meet statutory requirements. But both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency. This form, now known as EL-122, is entitled "Official No. Absentee Ballot Application/Certification." It was created in 2010 in an effort to streamline paperwork following the 2008 election, and has been available and in use ever since.... The Campaign argues this "application" is not an application, or that municipal clerks do not give this form to voters before distributing the ballot, in contravention of the statutes. Regardless of the practice used, the Campaign would like to apply its challenge to the sufficiency of EL-122 to strike 170,140 votes in just two counties – despite the form's use in municipalities throughout the state. Waiting until after an election to challenge the sufficiency of a form application in use statewide for at least a decade is plainly unreasonable. 2) All Dane County / Milwaukee County absentee ballots with witness address information added by the municipal clerks should be tossed. The process of handling missing witness information is not new; election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016. It has been relied on in 11 statewide elections since, including in the 2016 presidential election when President Trump was victorious in Wisconsin. The Campaign nonetheless now seeks to strike ballots counted in accordance with that guidance in Milwaukee and Dane Counties, but not those counted in other counties that followed the same guidance. The Campaign offers no reason for waiting years to challenge this approach, much less after this election. None exists. 3) Ballots cast at Dane County's "Democracy in the Park" events were illegitimate. The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature's The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature's concerns were widely publicized, the Campaign never challenged these events, nor did any other tribunal determine they were unlawful. The Campaign now asks us to determine that all 17,271 absentee ballots collected during the "Democracy in the Park" events were illegally cast. Once again, when the events were announced, the Campaign could have challenged its legality. It did not. Instead, the Campaign waited until after the election — after municipal officials, the other candidates, and thousands of voters relied on the representations of their election officials that these events complied with the law. The Campaign offers no justification for this delay; it is patently unreasonable. His dissenting colleagues took aim at his reasoning. Chief Justice Patience Roggensack said the majority justices lacked courage; Justice Rebecca Grassl Bradley said the majority was uninterested in protecting the integrity of the election; Justice Annette Ziegler said expecting challenges before an election was "absurd." By Gretchen Schuldt It was a 4-3 squeaker in the State Supreme Court this week as it upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race. The full document is chock-full of dissents and concurrences – the entire thing is 81 pages long and long, and yes, there is a bit of the snark we have come to expect from Justice Rebecca Grassl Bradley. We are dissecting the decision, trying to make it a bit easier for non-lawyers to follow by arranging it in some sort of logical order, grouping excerpts from the main decision, written by Justice Brian Hagedorn, with excerpts from the relevant dissents and concurrences. We also aiming for the major points, and don't plan to replicate every word in the decision. Our introduction to the decision is from Hagedorn, who summarized it nicely in his majority opinion which was joined by Dallet, Walsh Bradley, and Justice Jill Karofsky. The (Trump) Campaign focuses its objections on four different categories of ballots – each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast. A big theme for the justices was whether Trump's complaints were filed in a timely manner, and that theme ran through much of the justices' writings. 1. Indefinitely confined This was definitely the least contentious issue the justices dealt with.
State law allows voters to declare themselves indefinitely confined if they meet legal requirements. This gives them the ability to avoid the requirement to present a photo ID to get an absentee ballot. The Dane and Milwaukee County clerks in March, in Facebook posts, said any potential voter could declare indefinite confinement because of the pandemic and Gov. Tony Evers' "Safer-at-Home" which was in effect at the time. Within a week, though, the Supreme Court said the Dane/Milwaukee County advice was erroneous. and the county clerks modified their postings. Here is what Hagedorn, delivering a bench slap to Team Trump, said in the majority opinion. The (Trump) Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 28,000 votes. The Campaign's request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit. Roggensack, in a dissent joined by Grassl Bradley and Ziegler, was the only other justice to directly address the issue, and she did so only briefly. In the pending matter, we do not have sufficient information about the 28,395 absentee voters who claimed this status in Milwaukee and Dane counties to determine whether they lawfully asserted that they were indefinitely confined prior to receiving an absentee ballot. Therefore, I go no further in addressing this contention. Next: Timeliness New postings from almost 2,000 people show broad opposition to Supreme Court redistricting proposal12/7/2020 ![]() Updated Dec. 14, 2020 to correct the number of pages in the Fair Maps Coalition submission. By Gretchen Schuldt Almost 2,000 additional comments opposing a proposal to give the State Supreme Court power to draw state redistricting maps were made public in the days following the Nov. 30 comment deadline. Negative comments came from representatives of Gov. Tony Evers; a group of nine law professors; three election scholars; two former state senators; and 1,932 various Wisconsin residents – the last in a 712-page compilation of comments from the Fair Maps Coalition. All of the submissions can be found here. The proposal, filed with the Supreme Court by the Wisconsin Institute for Law and Liberty and former State Rep. Scott Jensen, seeks to change the way redistricting disputes are handled by the courts. WILL is a conservative law firm. Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies. The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say. Assistant Attorneys General Anthony D. Russomanno and Brian P. Keenan, on behalf of Evers, said Jensen and WILL are asking the Supreme Court to adopt rules that conflict with the court's traditional role in original actions. "And they do so in the context of especially complex trial court litigation, without meaningfully addressing the core factual and practical issues that will arise," they wrote. "Further, the proposal codifies court involvement in a political process and does so before that process can even begin." "We caution against the use of judicial rulemaking to grant jurisdiction to the Wisconsin Supreme Court over an original action that requires extensive fact-finding, is overtly political, and for which there are adequate alternative forums for resolution in the first instance," wrote the nine law professors "We do not challenge this Court’s authority to adopt rules on original jurisdiction or to hear the types of cases described in the petition. Instead, we suggest that this Court exercise its discretion to deny the petition..." The nine were Steven G. Calabresi, Zachary D. Clopton, James E. Pfander, and Martin H. Redish – Northwestern Pritzker School of Law; Maureen Carroll – University of Michigan Law School; Michael C. Dorf – Cornell Law School; Atiba R. Ellis and Edward A. Fallone – Marquette University Law School; and David S. Schwartz – University of Wisconsin Law School. Three other lawyers, who are election scholars, noted that the Supreme Court spent years considering redistricting issues before it declined in 2009 to adopt court rules for redistricting disputes. The Jensen / WILL submissions do not mention the court's earlier consideration, wrote the experts, Justin Levitt, of the Loyola Law School; Nicholas Stephanopoulos, of Harvard Law School; and Robert Yablon, of UW Law School. "That is a bewildering omission," they wrote. "To overlook the relevant history is to miss hugely important lessons about the challenges of rulemaking in this area." They continued: "When this court last considered the issue, two overarching concerns drove its decision not to act: first, that adopting rules would encourage redistricting disputes to be resolved through litigation in this court rather than through the political process; and second, that inviting politically fraught redistricting litigation would threaten the court’s institutional integrity. On each of these scores, this proposed rule is far worse than the proposal that the court previously rejected." Former State Senators Dale Schultz, a Republican, and Tim Cullen, a Democrat, submitted joint comments opposing the proposal. "We...know that in times of increased political division, it is unlikely the Legislature will accomplish this important work if it knows the State Supreme Court is waiting, willing to take the issue out of their hands," they wrote. "We ask you to respect the Legislature as a coequal branch of government, and not adopt this rule that would prematurely involve the court in a political question." A (very) small sampling of the comments from 1,932 individuals and compiled by the Fair Maps Coalition is below. "If this rule change is to take place, it will further limit the ability of the public to provide input on the process. I feel all stakeholders, not just party representatives, should continue to have an opportunity to influence this process. The rule change request is clearly politically motivated, and so should be denied in favor of the current process that uses an independent, non elected federal judge." – Aaron Day, Green Bay "This will result in harmfully politicizing the court, excluding nonpartisan groups from full participation. This rule also provides insufficient transparency measures. Transparency is an important part of all branches of government in our democracy." – Agnes Welsch, Menomonie "I oppose the WI Supreme Ct being allowed to take jurisdiction on redistricting matters. All parties should be allowed to plead their case about redistricting matters, not just political parties. Also, allowing the WI Supreme Ct to simply disregard the proposed rules and come up with their own, if they wish to, is unfair and improper and will lead to serious questions about political influence and transparency. Finally, Plaintiffs should be allowed to plead their case in federal courts, if necessary, to make sure their grievances are heard!" – Arthur Anderson, Elm Grove "Allowing a rushed process disadvantages many individuals and groups. To honor our history as a democratic nation, we must allow all voices to be heard on equal grounds. Political parties may come or go, but people are here to stay." – Ann Lewandowski, Waunakee "The GOP 'Justices' on the WI Supreme Court are setting WI back hundreds of years!" – Michael Goodman, Madison ![]() Revised Dec. 1, 2020 By Gretchen Schuldt An effort to get the State Supreme Court to give itself the power to draw new legislative maps based on the pending census drew negative reactions from 40 organizations and individuals who submitted comments on the proposal before Monday's deadline. There were just two comments favoring the proposal. One of them was by attorney Misha Tseytlin on behalf of Republican U.S. Representatives Glenn Grothman, Mike Gallagher, Bryan Steil, and Tom Tiffany and Rep.-elect Scott Fitzgerald. Attorney Kevin M. St. John also filed comments in favor of the new rule. St. John was acting on behalf of Assembly Speaker Robin Vos and Fitzgerald, in his role as State Senate majority leader. Both Vos and Fitzgerald are Republicans. Those two said the proposal protects the legislature’s and state's constitutionally conferred primary roles in redistricting, minimizes the potential for "federal court intrusion," and "promotes the sovereign interests of the citizens of this state." Many of the comments opposing the change focused on the restrictions on public participation in the redistricting process. The Wisconsin Justice Initiative, for example, said in its comments that the proposal "ultimately allows the Court to develop its own redistricting proposal, establish many of the rules for any public comment on the proposal, and approve the proposal. The petition leaves it unclear whether non-governmental interested groups or individuals would be allowed to file formal objections to any Court map or have any say on it at all, as their right to participate would be so severely limited." The petition, filed by former State Rep. Scott Jensen, a Republican, and the Wisconsin Institute for Law and Liberty, the conservative law firm, seeks to change the way redistricting disputes are handled by the courts. Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies. The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say. "WILL’s proposed changes would only allow for consideration of partisan interests rather than those of individual Wisconsinites and civic groups that can provide for knowledge about their regions and how certain redistricting of areas would affect them..." the Dane County Board said in comments submitted to the Court. "WILL’s proposed changes decrease transparency in the redistricting process and would allow the Court to bypass consideration of any views by groups other than elected officials and/or political parties." "The rules, if adopted, will increase the politicization of the Court while they decrease the public trust in the redistricting process," the ACLU wrote. The Supreme Court considered a similar petition previously and a majority of justices rejected it, the organization said. "As Justice (David) Prosser stated during the 2009 rulemaking process, the Court taking original jurisdiction in redistricting cases would be a 'fundamental institutional mistake for this Court' as it would place the Court at the center of the political arena." "The proposal ultimately allows the Court to develop its own redistricting proposal, establish many of the rules for any public comment on the proposal, and approve the proposal." – Wisconsin Justice Initiative "If accepted," the ACLU continued, "the proposed rule will undermine the public’s trust in the Court and in the redistricting process. It is clear that the public wants a fair, impartial process: over the past few years, 34 county boards have passed resolutions, and voters in 28 Wisconsin counties and 19 municipalities throughout the state have passed referendums, in support of fair electoral maps and a non-partisan 2021-22 redistricting process." "A traditional trial and appeals process to resolve redistricting challenges allows Wisconsin voters and groups to follow cases throughout the process and, if motivated and possible, get involved," Linda Laarman wrote. "Vesting judicial resolution in a single court — the Wisconsin Supreme Court — would diminish the ability to follow cases and participate in them." Under the petition, the Supreme Court would have deadlines for actions on redistricting, but would be allowed to disregard most of the dates, she said. "The rationale, according to the petition?" Laarman wrote. “ 'Because circumstances can always change.' ” Below are excerpts from other comments submitted. The full comments can be found here. League of Women Voters of Milwaukee County – "The proposed rule change vests powers and duties in this court that currently belong to the state legislature. Seizing these powers and responsibilities under the guise of 'divided government,' as an administrative rule change, grossly violates the separation of powers with our constitutional framework. The creation of fair voting districts dramatically impacts the quality of democracy in our state and should be accomplished with transparency and neutrality." Linda Bochert – "I write, as a private citizen and voter, to raise a predicate question: should the Court adopt a rule at all? I think not. Not because the issue is political, complicated, controversial, or simply hard – although it is all of those things. But because the redistricting issue it proposes to solve is inherently not a judicial issue but a legislative one." Douglas Owens-Pike – "As a farmer, making my living by tilling the soil, and a member of the Farmers Union, I am shocked at the audacity of one narrow interest group's attempt to make it even more difficult to challenge an already biased, unfair redistricting process. The proposed rules change would throw a dark cloak over an already closed-door process, shrouding out the light of open participation from a wider swath of public interests that have a history of being represented poorly." Sarah S. Jones – "Wisconsin citizens deserve fair representation in their legislature, determined by fairly-designated voting districts. They deserve a process for drawing those districts which operates without partisan affiliation; allows ample time for deliberation; admits comment by any concerned groups and individuals, including the non-partisan; provides for review by appropriate levels of state or federal court; and maintains transparency throughout." Register here for the event. All on the Line – The proposed rule "does not make clear who is permitted to object or rebut the Court’s proposed map plan, but instead suspends the creation of that list to a later date. This could lead to absurd results, such as a group being able to submit a proposed map, but not being able to submit an objection or rebuttal to the Court’s plan, and vice versa. Moreover, the Petition will preclude participation by community groups that lack the sophistication to understand brand new judicial procedures or lack the technology to draw their own map. The Court’s rules should not limit public input on a proposed map where the rules of civil procedure or prudential considerations could not."
Campaign Legal Center – The Proposed Rule has numerous flaws. Most notably, the Proposed Rule: (1) invites premature litigation; (2) mistakenly suggests that the legislature can adopt new districts without presenting those districts to the governor for approval or veto; (3) prioritizes involvement of partisan interests as parties; (4) short shrifts or, at the Court’s discretion, omits entirely the fact-finding process necessary to resolve redistricting disputes; and (5) establishes inadequate procedures governing proposed maps. Tseytlin – We support Rule Petition 20-03 for three reasons. First, it would restore the primacy of this Court vis-à-vis the federal courts in resolving any impasse in Wisconsin’s congressional-redistricting process. Second, it meets this Court’s criteria in Jensen v. Wisconsin Elections Board...for 'establish[ing] [the] protocol for the adjudication of redistricting litigation.' Third, it puts forth a process that will allow the Justices of this Court—who are elected by the people statewide to serve on the State’s highest court—to adjudicate any dispute over the congressional districts well before statutory deadlines for the Fall 2022 Elections, which may not be possible if this Court were to allow such redistricting disputes to proceed first in the circuit court or federal district court." Common Cause – "Our opposition to the Jensen petition is based on both the narrow scope of interest in the upcoming redistricting process which it seeks to define, as well as the abbreviated period of time in which it proposes the Court to act. Both of these factors undermine and even largely exclude altogether, the interests and concerns of most Wisconsin citizens, including our members. It is important to remember that voters and citizens are the ones whose rights are most impacted by redistricting, and who deserve to be protected by the Court. The petition seeks a rush to judgment without allowing citizens to have their concerns adjudicated and addressed through even the normal channels of judicial review." ![]() By Margo Kirchner Trial courts must issue specific factual findings on why a person is a danger to self or others before extending an involuntary commitment, the Wisconsin Supreme Court recently held. Moreover, said the court, general concerns regarding a person’s mental state, inability to maintain employment, and inability to care for oneself are not sufficient for a finding of dangerousness. Justice Ann Walsh Bradley authored the court’s opinion in Langlade County v. D.J.W. Chief Justice Patience Drake Roggensack dissented, saying she would have recommitted D.J.W. on grounds that Langlade County never even raised in Circuit Court or on appeal. Justice Rebecca Grassl Bradley also dissented, on different grounds. In January 2017, a circuit court in Langlade County found D.J.W. mentally ill, dangerous, and in need of treatment. The court committed D.J.W. to custody for six months and ordered involuntary treatment and medication. In June 2017, Langlade County petitioned to recommit D.J.W. for a year. The Circuit Court appointed Dr. John Coates to examine D.J.W. in connection with possible recommitment. Though Coates wrote a report following the examination, at the July 2017 recommitment hearing the County presented only Coates’ oral testimony. The report was not admitted as evidence. Coates testified at the hearing that D.J.W. had schizophrenia, a history of hallucinations over three years, and an illogical thought process with “grandiose illusions.” Coates said D.J.W. reported seeing the devil and hearing voices in the months prior to the hearing and that D.J.W.’s illness was treatable with psychotropic medication. When asked whether D.J.W. was a danger to himself or others, Coates opined that if D.J.W. were to end treatment he would likely exacerbate his illness and experience hallucinations. But, said Coates, “the greater risk is just his inability to properly care for himself and to properly socialize if he goes untreated.” Coates noted that D.J.W. had been living with his parents, quit his job because he thought he was the Messiah, and obtained disability benefits. To the doctor, these facts suggested that D.J.W. could not independently care for himself and would be homeless if his parents did not provide shelter. Coates thought D.J.W.’s judgment was still impaired. Coates testified that he did not know if D.J.W. was suicidal or homicidal. But, he said, acutely psychotic individuals’ actions are unpredictable and for D.J.W. suicidal and homicidal ideations were possible. Coates reiterated that the “major danger” to D.J.W. was that if he stopped medications he would be delusional and hallucinating and unable to interact appropriately with others. Coates continued: “So the major danger is to himself. I don’t think he’s necessarily a violent man that’s going to go out and harm others.” On cross-examination, when pressed about how D.J.W. quitting his job showed dangerousness, Coates responded that D.J.W. lost his employment and could not provide for his basic needs, had been found disabled, and would be homeless without his parents’ help. ![]() By Margo Kirchner Incarcerated people cannot be forcibly medicated unless they are a danger to themselves or others – just being too incompetent to refuse the medication is not enough to justify its administration, says the Wisconsin Supreme Court. The court recently held that a statute permitting administration of medication upon a finding of mere incompetence to refuse was unconstitutional. Justice Annette Kingsland Ziegler wrote for the court, joined by Justices Ann Walsh Bradley, Daniel Kelly, and Rebecca Dallet. In 2005, C.S. was convicted of mayhem and sentenced to 10 years of imprisonment plus extended supervision. C.S. suffers from schizophrenia, and during his incarceration in 2012 Winnebago County petitioned to involuntarily commit and medicate him. Involuntary commitment is a separate matter from involuntary medication. Those who are involuntarily committed, whether in prison or not, have a general right to refuse unwanted medication and treatment. The Winnebago County Circuit Court committed C.S. and ordered involuntary medication after finding that C.S. was incompetent to refuse it himself. In prior litigation C.S. unsuccessfully challenged his involuntary commitment. The recent case instead challenged the involuntary medication orders. Those orders were based on findings that C.S. was incapable of understanding his condition and could not make an informed choice about medication. At no point in the proceedings did the court determine that C.S. was dangerous. C.S. argued that the statute allowing medication of an incarcerated person was unconstitutional because, unlike the law governing those not in prison, it did not require the judge to find that the person is a danger to himself or others. Winnebago County argued in response that it had an interest in the care of mentally ill and incompetent inmates, which justified the statute. ![]() By Gretchen Schuldt State Supreme Court candidate Jill Karofsky won in most of the North Shore suburbs of Milwaukee County in Tuesday's primary election, while incumbent Daniel Kelly did better in the southern suburbs. Karofsky, with 47,432 votes, was the top Milwaukee County finisher in the Feb. 18 primary. Incumbent Daniel Kelly finished second, with 44,088 votes, and Ed Fallone finished third, with 25,963 votes. Statewide, Kelly finished first with 352,855 votes, Karofsky got 261,723, and Fallone received 89,181. Karofsky and Kelly will compete in the April 7 general election. In Milwaukee County Karofsky won in Bayside, Brown Deer, Fox Point, Glendale, Milwaukee, St. Francis, Shorewood, and Whitefish Bay. Kelly won in Cudahy, Franklin, Greendale, Greenfield, Hales Corners, Oak Creek, River Hills, South Milwaukee, Wauwatosa, West Allis, and West Milwaukee. Karofsky, a Dane County circuit judge, and Fallone, a Marquette University law professor, are considered more liberal than Kelly, who was appointed by former Gov. Scott Walker and is a member of the conservative Federalist Society. Kelly won in some communities because Karofsky and Fallone split the more liberal vote. All other things being equal, if Fallone voters back Karofsky in the general election, she will pick up Cudahy, River Hills, South Milwaukee, Wauwatosa, and West Milwaukee, all of which went for Kelly in the primary. She also would pick up an additional 96 wards in the city of Milwaukee. Statewide, Karofsky would need to pick up all of Fallone's votes, plus 1,952 more to unseat Kelly. Milwaukee County primary voter turnout was highest in Shorewood, at 34%, and lowest in West Milwaukee, at 18%. |
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